La Union del Pueblo Entero v. Harris Cty RepubLa Union del Pueblo Entero v. Harris Cty Repub
Appeal from the United States District Court for the Western District of Texas USDC No. 5:21-CV-844
The Texas Legislature passed Senate Bill 1 in August 2021 and Governor Greg Abbott signed it into law the next month. SB 1 amended the Texas Election Code in various ways. Five groups of private plaintiffs and the United States sued the State of Texas and an assortment of state and local officials to enjoin enforcement of some or all of the new provisions. Several committees associated with the Republican Party moved to intervene as defendants. The district court denied their motions. Because the Committees have a right to intervene under
I.
In one of many special sessions in 2021, the Texas Legislature passed SB 1. See
About a month after the district court consolidated the private suits at the end of September, and a week and a half before the United States filed suit, the Republican Committees sought to intervene as defendants. The Republican Committees include the local chapters of Harris and Dallas Counties, the Republican National Committee, the National Republican Senatorial Committee, and the National Republican Congressional Committee. The local chapter committees make “significant contributions and expenditures to support Republican candidates” in Texas
The district court denied the Committees’ motion to intervene. Though the court noted that the motion was “undoubtedly timely,” it held that the Committees failed to satisfy the other three requirements in
II.
Rule 24 allows certain parties to intervene by right.
(1) the application for intervention must be timely;
(2) the applicant must have an interest relating to the property or transaction which is the subject of the action;
(3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; [and]
(4) the applicant‘s interest must be inadequately represented by the existing parties to the suit.
Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015) (quoting New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co. (”NOPSI“), 732 F.2d 452, 463 (5th Cir. 1984)). It is the movant‘s burden to establish the right to intervene, but “Rule 24 is to be liberally construed.” Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014). “Federal courts should allow intervention ‘where no one would be hurt and the greater justice could be attained.‘” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) (quoting McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970)); see Miller v. Fed‘n of S. Coops., No. 21-11271, 2022 WL 851782, at *4 (5th Cir. Mar. 22, 2022) (noting “our broad policy favoring intervention” and the intervenor‘s “minimal burden” (internal quotes and citation omitted)). At this stage, the court takes the movant‘s factual allegations as true. See Mendenhall v. M/V Toyota Maru No. 11, 551 F.2d 55, 56 n.2 (5th Cir. 1977). We review the denial of a right to intervene de novo. Texas, 805 F.3d at 656.
The Committees argue that they are entitled to intervene by right and that they satisfy each of
A.
First, the interest requirement. To intervene by right, the Committees must claim “an interest relating to the property or transaction that is the subject of the action.”
The Committees have satisfied the interest requirement of Rule 24(a). Specifically, the Committees expend significant resources in the recruiting and training of volunteers and poll watchers who participate in the election process.2 SB 1 unquestionably regulates the conduct of the Committees’ volunteers and poll watchers. See Texas, 805 F.3d at 658 (quoting Northland Fam. Plan. Clinic, Inc. v. Cox, 487 F.3d 323, 343 (6th Cir. 2007)). As noted by the Committees, they expend resources regarding the recruitment, training, and appointment of poll watchers, and SB 1 changes the legal landscape for what it takes to carry out that duty.3 This interest goes beyond a purely “ideological” reason for intervention and amounts to a “direct” and “substantial” interest in the proceedings. See Texas, 805 F.3d at 657-59. Because the burden is lower for a “public interest group” raising a “public interest question,” see Brumfield, 749 F.3d at 344, the Committees clear this hurdle because many of the claims brought by the plaintiffs could affect the Committees’ ability to participate in and maintain the integrity of the election process in Texas.4 Accordingly, the Committees have a legally protectable interest in these proceedings to support intervention by right.5
B.
Second, the impairment requirement. Because the Committees have established
The Committees have established that their interest may be impaired if they are denied intervention. SB 1 makes several amendments to the Texas Election Code which change the entire election landscape for those participating as the Committees’ members and volunteers.
The poll watchers are the prime example. The Texas Election Code already provides that the “county chair for each political party” that has nominees on the ballot “may appoint [poll] watchers.”
SB 1 also provides poll watchers with more rights. Under SB 1, poll watchers “may not be denied free movement where election activity is occurring within the location at which the watcher is serving.” See
If the district court either partially or fully grants the relief sought by the plaintiffs here, the Committees will have to expend resources to educate their members on the shifting situation in the lead-up to the 2022 election. Further, SB 1 grants rights to the Committees and their members that could be taken away if the plaintiffs prevail. Because that result could practically impair the Committees’ interest in their absence, they have satisfied the impairment requirement under
C.
Third, the inadequacy-of-representation requirement. Having satisfied the rest of
Though we have characterized this burden as “minimal,” Edwards, 78 F.3d at 1005, to give it some “teeth,” we have recognized “two presumptions of adequate representation,” Brumfield, 749 F.3d at 345. The first presumption arises when the intervenor “has the same ultimate objective as a party to the lawsuit.” Texas, 805 F.3d at 661-62. This presumption can be overcome by showing “adversity of interest, collusion, or nonfeasance on the part of the existing party.”6 Id. (quoting Edwards, 78 F.3d at 1005). An intervenor can establish an adversity of interest if “its interests diverge from the putative representative‘s interests in a manner germane to the case.” Id. at 662. The second presumption arises when the existing party “is a governmental body or officer charged by law with representing the interests” of the intervenor, which can be overcome by showing that the intervenor‘s “interest is in fact different from that of the” governmental party “and that the interest will not be represented by” the existing governmental party. Id. at 661-62 (quoting Edwards, 78 F.3d at 1005).
Assuming either presumption applies, the Committees have rebutted each. It is uncontested that the starting point is that the Committees and the defendants have the same objective: uphold SB 1. But as the Committees point out, there are reasons to believe the Committees’ interests are less broad than those of the governmental defendants, which may lead to divergent results. See Brumfield, 749 F.3d at 346. The Committees’ interests diverge first and foremost with how to carry out the ultimate objective. The State and its officials would prefer to not resolve this case on the merits at all—they vigorously contend that these lawsuits should be dismissed on sovereign-immunity and standing grounds. Were the State and its officials to succeed on those arguments, the remaining local officials would not adequately represent the Committees’ interests—neither the United States nor the private plaintiffs contend the local officials could.7 That is likely because at least some of the local officials have already said that they will not substantively defend the constitutionality of the law in this lawsuit. And one of the officials is a plaintiff in another case challenging the constitutionality of provisions in SB 1. See Longoria v. Paxton, No. 22-50110, 2022 WL 832239, at *1-2 (5th Cir. Mar. 21, 2022) (certifying questions to the Supreme Court of Texas). This would leave the Committees, especially the local committees involved here, without recourse to protect their interests in SB 1
Specific to the governmental-representative presumption, the Committees’ private interests are different in kind from the public interests of the State or its officials. The Committees interests primarily rely on the expenditure of their resources to equip and educate their members, along with relying on the rights of the Committees’ members and volunteers who participate in the election. See Sierra Club, 18 F.3d at 1207 (finding this requirement satisfied where government was defending public interests while the intervenors sought to vindicate only their economic interests). Though the Committees’ interests are not solely ideological, see Texas, 805 F.3d at 658, they are nevertheless incidentally partisan—if for no other reason than that they are brought on behalf of a partisan group, representing its members to achieve favorable outcomes.8 Neither the State nor its officials can vindicate such an interest while acting in good faith. Cf. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (government actors “are accorded a presumption of good faith because they are public servants, not self-interested private parties“). Moreover, the State and its officials have many interests that the Committees do not—“maintaining not only” SB 1, “but also its relationship with the federal government and with the courts” that routinely hear challenges to the State‘s election laws. See Brumfield, 749 F.3d at 346.
Though we “cannot say for sure that the state‘s more extensive interests will in fact result in inadequate representation,” we can say that “surely they might, which is all that [
III.
The Committees made a timely application to intervene by right, they claim interests relating to SB 1 which is the subject of this consolidated suit, their absence from the suit may practically impede their ability to protect their interests, and the existing parties might not adequately represent those interests. Because this is enough to satisfy
PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
Both local and national Republican committees (“the Committees“) seek to intervene as of right as defendants in five consolidated lawsuits brought by private plaintiffs against Texas state and local officials and a suit by the United States against the State of Texas and Texas‘s Secretary of State challenging various provisions of SB 1. The Local Committees seeking to intervene are the Harris County Republican Party and Dallas County Republican Party. The National Committees are the National Republican Senatorial Committee, National Republican Congressional Committee, and the Republican
I.
I agree with the panel decision that the Local Committees presented a sufficient interest in the proceedings. But in my view, the National Committees failed to present a direct interest related to defending SB 1. An intervenor must show a “direct, substantial, legally protectable interest in the proceedings,”2 and the interest must be “one that the substantive law recognizes as belonging to” the intervenor.3 A “generalized preference that the case come out a certain way” is not enough to show an interest.4 Nor are purely “ideological, economic, or precedential reasons” for intervention.5
A.
The Local Committees assert that they have an interest in the lawsuit because they “recruit, train, and appoint poll watchers ‘to observe the conduct of ... election[s]’ in Texas.” Section 4.04 of SB 1 requires the Secretary of State to develop and maintain training for poll watchers.6 SB 1 requires poll watchers to complete the training, though it also requires that this free training be accessible online “at any time, without a requirement for prior registration.”7 While SB 1 does not regulate whom the Local Committees recruit or appoint as poll watchers, the Local Committees assert a direct, substantial, legally protectable interest in the proceedings as SB 1‘s training requirements will affect how the Local Committees recruit and train their poll watchers.
B.
The same cannot be said of the National Committees. The National Committees assert that they have an interest in the lawsuit because they “fund recruiting, education, and support activities for poll watchers.” This is not a direct interest in the poll watching provisions of SB 1. The National Committees’ purported interest is too remote to allow them to intervene as of right.
Several of our sister circuits likewise use the “direct, substantial, legally protectable” standard.8 In American Lung Association, the Second Circuit held that electric utility companies did not have an interest in various private plaintiffs’ action against the EPA for failing to review and promulgate national air quality standards within the statutorily required period.9 The court reasoned that the air quality standards at issue did not directly impact the utilities industry so the utility companies’ interest was too remote to allow them to intervene
In sum, I would find that only the Local Committees presented a direct, substantial, legally protectable interest in the proceedings. That is not to say that the National Committees have no interest in the outcome of the litigation. Rather, their interest is too broad and indirect to support intervention as of right, especially as compared to the existing parties to the lawsuit and the Local Committees. In this situation, courts typically welcome their advocacy by amicus briefs. Here, the National Committees’ position is most efficiently and appropriately considered as friends of the court rather than as parties to the lawsuit.
II.
Second, even if both the National and Local Committees had a direct, substantial, legally protectable interest in the proceedings, the Committees failed to rebut the presumption that the existing defendants adequately represent the Committees’ interests.
There is a presumption that the existing parties adequately represent the intervenors interests when the intervenor and an existing party share the same ultimate objective.11 Here, the Committees concede that they share same ultimate “objective” “of upholding SB 1.” To rebut the presumption of adequate representation, the Committees “must show adversity of interest, collusion, or nonfeasance on the part of the existing party.”12 The Committees allege that their interests diverge from the existing defendants.
That the state defendants are defending SB 1 on jurisdictional grounds whereas the Committees seek to defend SB 1 on the merits does not create an adversity of interest. This case is dissimilar to Brumfield, in which the intervenors and the existing party had divergent views on the same substantive issue.13 Indeed, the party in Brumfield conceded a legal issue whereas the intervenors wished to contest it.14 Here, however, the existing defendants and the Committees are unified in defending the substance of the lawsuit—seeking to uphold SB 1. The state defendants are working towards that objective via jurisdictional challenges. Both procedural and merits-based challenges can accomplish
The panel decision contemplates that adversity of interests between the local officials named as defendants and the Committees could arise if the state officials are later dismissed on sovereign immunity grounds. But the Committees’ purported adversity of interest must be “more than merely theoretical; there must be a serious probability that the existing party and the movant may not share the same ultimate objective.”15 The panel decision moves too quickly in its sovereign immunity analysis. First, one of the consolidated actions is the United States’ action against the State of Texas. Obviously, Texas cannot assert protection on sovereign immunity grounds against the United States.16 The Committees fail to explain why Texas would not continue to defend its own legislation on the merits when the State has been actively defending SB 1. Second, abrogation is a promising means to ensure that the state defendants remain in the lawsuit, as all the complaints bring claims under the Voting Rights Act to which the State enjoys no immunity.17
Finally, sovereign immunity aside, the Committees fail to show that the local officials do not intend to defend SB 1. The panel decision notes that one local official declined to defend SB 1. However, multiple local officials were named as defendants: the Elections Administrators of Medina, El Paso, Harris, Bexar, Hidalgo, and Dallas County as well as the County Clerk of Travis County. Before these cases were consolidated, the Election Administrator of Medina County filed a motion to dismiss, defending SB 1 both on jurisdictional grounds and on the merits. And far from “stay[ing] out of” the lawsuit, other local defendants have “reserve[d] the right to raise any additional defenses that become apparent throughout the factual development of this case.”
Because the Committees cannot point to a meaningful adversity of interest beyond a theoretical possibility that all the state defendants who are actively defending the lawsuit could drop out, the Committees failed to
III.
Of course, this Court favors intervention when the elements are met; however, there is no “broad policy” favoring intervention when the intervenor fails to meet the strictures showing intervention as of right.18 To me, the Committees failed to meet their burden to show they are entitled to intervention as of right. The price of relaxing the showing required for intervention as of right risks undue complication of litigation. An amicus brief, as invited by the able district court judge, would have been the appropriate mechanism to welcome the Committees’ participation without the attending risk of future inefficiencies in this and other time-sensitive cases.19 Indeed, amici enjoy a unique position with the opportunity to advocate outside the confines of controlling issues, both in the lower federal courts and the Supreme Court. I respectfully dissent.